In Rethinking Free Speech and Civil Liability, Daniel Solove and Neil Richards attempt something truly ambitious.  The authors seek to map coherent boundaries for the First Amendment's vast civil domain.  Their project merits serious attention.  Currently, different rules apply to civil liability for speech depending on whether the liability arises in tort, contract, or property.  Solove and Richards claim that these boundaries are unworkable, under-theorized, and in some cases destined to collide.  They develop a framework for mapping the First Amendment's civil domain that is based upon a distinction regarding the type of power the state exercises in various civil liability contexts.  This response critically examines the choice and meaning of power, and the boundaries that a power-defining approach would draw.

Noah Zatz's article, Managing the Macaw:  Third-Party Harassers, Accommodation, and the Disaggregation of Discriminatory Intent, is a brilliant addition to an important line of scholarship bringing accommodation requirements into the fold of antidiscrimination law.  Using the colorful hypothetical of the harassing macaw first introduced by Judge Easterbrook in Dunn v. Washington County Hospital, Zatz deftly shows that in cases of third-party harassment employers must do more than merely treat their employees equally; they must affirmatively protect against harassment.  In this brief Response I will probe the role of agency principles in employment discrimination law.  The distinction between direct and vicarious employer liability for discrimination has been under-analyzed, and this lack of attention leads Zatz to overstate the applicability of his account—to suggest that it can be used to determine the full extent of an employer's liability for actions by its agents.  In doing so, Zatz puts the future of individual disparate treatment law at risk.  He opens individual disparate treatment law to considerations of employer "notice" and "feasibility" where it has traditionally imposed strict liability.

Analogies between the First Amendment and the Second (and comparable state constitutional protections) are over 200 years old.  District of Columbia v. Heller itself makes them, and they can often make sense.  But Guns as Smut does something peculiar:  It analogizes a core category of private arms to one of the least protected and marginal categories of speech (obscenity).  It's hard to see any justification for such an analogy, other than a purely instrumental one.

The premise of the First Amendment's obscenity jurisprudence is that obscenity is historically recognized as one of the "limited areas" of speech that "lack any serious literary, artistic, political, or scientific value," and are thus "not protected by the First Amendment."  None of this analysis applies to guns.  Possessing guns is traditionally legal.  Guns do serve the self-defense value that the Court has found to be embodied in the Second Amendment.  And, Heller held, ordinary guns are at the core of "arms," not on the margin.

Analogies are temperamental things.  If it strikes someone wrong, no matter how scrupulously you explain yourself, no matter how defensible your position, people who may otherwise agree with you half of the time never seem to get past the analogy.  Arguments in hotly contested areas of the culture wars tend to run against how the thing is expressed, rather than what is expressed.  Race, abortion, sexual orientation:  Very often, discourse on these topics degenerates into debates about legitimate ways to talk about the thing, rather than talking about the thing itself.  The same phenomenon applies to talk of guns.  Further evidence, in my opinion, that Second Amendment discourse is not so much about guns or gun policy, but "much ado about something else."  This is how I read Professor Volokh's occasionally strident response to my recent piece, Guns as Smut:  Defending the Home-Bound Second Amendment.  Much of Professor Volokh's rebuttal is a mordant challenge to the accuracy of the analogy, rather than to arguments that underpin the analogy and independently justify the home-bound Second Amendment.